VISCOUNT SIMONDS.—The late Lord Simon described the question raised in Duncan v. Cammell, Laird and Co., to which frequent reference will be made, as one of high constitutional importance. No less important is the similar question which is raised in this appeal in relation to the law of Scotland. For in this case as in that the question is how far the public interest is allowed to outweigh the interest of the individual so that, though, in the words of the learned Lord Ordinary, the appellants' challenge of the respondents' actings can only be satisfactorily disposed of after it is known what the respondents in fact did, yet the documents necessary to that end are protected from disclosure upon the plea of public interest.
I do not think it necessary to state the facts at any length.
The appeal arises out of an incidental motion in an action in which the appellants seek a declaration that certain written determinations of the respondents purporting to determine in accordance with the provisions of Part VI of the Town and Country Planning (Scotland) Act, 1947,the development charges payable in respect of five developments undertaken by the appellants are ultra vires, illegal and of no effect. In short, they averred that in fixing the five development charges the respondents had not complied with the statutory requirements of the Act and of Regulations made under it. The Lord Ordinary, before whom the matter first came on a question of relevancy, excluded from proof certain averments in the condescendence as irrelevant and quoad ultra allowed a proof before answer, and in the course of his judgment made the observation to which I have already referred.
Following upon this judgment the appellants asked for a diligence for the recovery of the documents which were specified in their specification of documents and fell under five heads as follows:—
"(1) All letters, telegrams, memoranda and other written communications passing between the pursuers or anyone on their behalf on the one hand and the defenders, or anyone on their behalf, including district valuers, on the other hand relative to the determination of the development charges in respect of the developments mentioned in the conclusions of the summons and dated prior to the raising of the present action. (2) All minutes of all meetings between the defenders or anyone acting on their behalf and the pursuers or anyone acting on their behalf at which meetings there was considered and discussed the determination of development charges in respect of the developments mentioned in the conclusions of the summons, or any written notes kept by the defenders or anyone on their behalf recording what took place at said, meetings or any of them. (3) All applications and amended applications made by the pursuers to the defenders for determination of development charges in respect of the developments mentioned in the conclusions of the summons and all plans, estimates and amended plans sent along with or relative to said applications or amended applications. (4) All letters, written communications, circulars, and all other written documents in the possession of the defenders or passing between the defenders and anyone on their behalf and district valuers or others acting on behalf of the defenders, showing or tending to show the methods by which the amounts of the development charges in respect of the developments mentioned in the conclusions of the summons were to be or were calculated and determined. (5) All letters, written communications, circulars, and all other written documents passing between the district valuers concerned with the determination of the development charges stated on record, or anyone on behalf of the said district valuers, and the Chief Valuer (Scotland) Inland Revenue, or anyone on his behalf, showing or tending to show the methods by which the amounts of the development charges in respect of the developments mentioned in the conclusions of the summons were to be or were calculated and determined. (6) Failing principals, drafts, copies or duplicates of the above or any of them,"
It has not been suggested that the documents in all the five calls of the specification would not have been the proper subject of recovery if the litigation had been between two private litigants. The objection that was taken was one that could only be taken by or on behalf of the Crown. It was taken in a certificate under the hand of the Secretary of State for Scotland, and the concluding paragraph of it was as follows:—
"I have examined the said documents and have formed the view that on grounds of public interest those within the terms of calls 4 and 5 and those within the terms of call 2 so far as it refers to non-agreed minutes or any written notes kept by the defenders or anyone acting on their behalf recording what took place at meetings between them or anyone acting on their behalf and the pursuers or anyone acting on their behalf ought not to be produced because they belong to a class which it is necessary for the proper functioning of the public service to withhold from production, and accordingly. I must object to their production."
The question for your Lordships is whether this objection must or should (for the moment I use the alternative words) be sustained by the Court. That question has been answered in the affirmative by the Lord Ordinary and by the learned Judges of the First Division of the Court of Session. The Lord Ordinary in the course of his opinion said, "… in order to do justice it is essential to know exactly what the Board [the respondents] did do. The documents called for may be very relevant on that essential matter, and it is therefore very unfortunate if they are not to be disclosed." Similar observations have been made in other cases by other Judges in Scotland and in England, and it is in fact a repugnant task for those who are charged with the administration of justice to determine the rights of parties with something less than the full knowledge of all the material facts and documents. But that such may be their task is beyond all question, and the debate upon this appeal has largely been whether the law of Scotland in respect of an objection to recovery of documents on the ground of public interest was determined by the decision of this House in Duncan's case and, if not, in what terms the law of Scotland should be stated in respect of such an objection.
It is necessary, however, before I deal with this important question that I should dispose of the contention raised by the appellants that the respondent Board does not represent the Crown for the purpose of raising this objection. I agree with the Scottish Courts in thinking this contention untenable. There is one Central Land Board for England and Scotland. It was established under the English Act and by the Scottish Act it was required to have an office in Scotland. By section 1 (5) of the Scottish Act it was enacted that the functions under the Act of the Board and of its officers and servants should be exercised on behalf of the Crown. By subsection (3) of the same section the Board was required in the performance of its functions under the Act to comply with such directions as might be given it by the Secretary of State. It is not a commercial corporation: the moneys required for its expenses are provided by the Treasury and its substantial function is to determine charges and collect for the Crown the charges so determined. These provisions and in particular that contained in subsection (5) of section 1, of which I can see no other purpose than to place this question beyond doubt, clearly distinguish this case from such cases as In re Woods and Central Control Board v. Cannon Brewery Co., upon which counsel for the appellants primarily relied. In my opinion, Lord Justice Denning was well justified in saying in Tamlin v. Hannaford (at p. 25):
"When Parliament intends that a new corporation should act on behalf of the Crown, it as a rule says so expressly, as it did in the case of the Central Land Board…"
This proposition was fully supported by the thorough examination of recent legislation which was made by the learned Solicitor-General for England.
It being established that the respondents were a body on whose behalf the Secretary of State could competently take an objection to recovery, the next question is what in the law of Scotland is the effect of that objection, and here it must first be asked what is the impact upon that law of the decision in Duncan's case. At once it must be said that that decision was given upon an English appeal, in which the law of Scotland was not directly under review, that the common law of Scotland differs from that of England in regard to the liability of the Crown to be sued and has developed independently in regard to the right of discovery or recovery of documents in possession of the Crown, and that, desirable though it may be that in matters of constitutional importance the law of the two countries should not differ, yet it would be clearly improper for this House to treat the law of Scotland as finally determined by a decision upon an English appeal unless the case arose upon the interpretation of a statute common to both countries.
What, then, is the bearing of Duncan's case upon the present appeal? Clearly that case settled that according to the law of England an objection validly taken to production of documents on the ground that this would be injurious to the public interest is conclusive. But for the fact that in the course of his opinion (in which the other learned Lords who heard the case concurred) Lord Simon supported his conclusion by references to the law of Scotland, that would be of little importance unless the assumption was made that the law of the two countries was necessarily the same. Lord Simon's first reference to the law of Scotland was introduced in this way. "The argument before us," he said, "proceeded on the assumption that there was no recorded decision of this House on the subject. This, however, is not so. My noble and learned friend Lord Thankerton has called my attention to a decision, pronounced by Lord Eldon, L.C., in this House in 1822, which is very much in point, Earl v. Vass ." Lord Simon's object then was to refute the assumption that this House had never pronounced upon the question, but unfortunately, as I think, he relied on a case which, though an appeal from the Court of Session, was heard by an English Lord Chancellor who does not appear to have been instructed as to the relevant Scots law but according to his own statement communicated with the Lord Chief Justice (Abbott, C.J.) and ascertained from him what he would have done under the circumstances of the case. Lord Simon was no doubt justified in referring to this case as a decision of this House upon the matter in debate but it would not be right to treat what he said as an assertion that the decision in Earl v. Vass was an authoritative exposition of the law of Scotland as it stood in the year 1942. That would be to ignore a long chain of authority in the Scottish Courts in which Earl v. Vass had been either disregarded or distinguished. Those of us who had the privilege of sitting with Lord Simon in this House know well that, had the present law of Scotland been under review in Duncan's case, nothing less than an exhaustive examination of the relevant authorities would have satisfied him.
The only other Scottish case referred to in any detail in Lord Simon's speech in Duncan's case was Admiralty v. Aberdeen Steam Trawling and Fishing Co., and I must again with great respect observe that to cite this case as authoritative without regard to the earlier case of Sheridan v. Peel and the later case of Henderson v. M'Gown (the latter a case of particular authority) must give an imperfect view of the law of Scotland.
I come, then, to the conclusion upon this aspect of the case that the observations in Duncan's case must, so far as they relate to the law of Scotland, be regarded as obiter dicta. They are entitled to the more respectful consideration because two noble and learned Lords well versed in the law of Scotland concurred in them. But they are not decisive and, if, apart from them, your Lordships would come to a different conclusion, you are, in my opinion, well entitled to do so.
Next, therefore, I ask what is the law of Scotland upon this matter on the assumption that Duncan's case did not determine it. In the course of the present appeal we have had the advantage of an exhaustive examination of the relevant law from the earliest times, and it has left me in no doubt that there always has been and is now in the law of Scotland an inherent power of the Court to override the Crown's objection to produce documents on the ground that it would injure the public interest to do so. I do not think it necessary myself upon this part of the case to say more than that I have read and fully concur in the opinion of my noble and learned friend Lord Normand.
Granted, then, that this inherent power exists and, moreover, that it has been preserved by section 47 of the Crown Proceedings Act, 1947, the next question is whether in the present case it should have been exercised. I read the judgments of the Lord Ordinary and of Lord Carmont, Lord Russell and Lord Sorn as agreeing in this, that, whether or not there is an inherent power, it ought not to be exercised in this case. The power is essentially a discretionary one, and I see no ground for saying that in refusing to exercise it any wrong principle has been applied. There I am content to leave it, for it would be vain to add one more to the attempted definitions of the circumstances in which the power should be exercised. Rarely, very rarely in recent times, has it been exercised; its exercise has been refused even where the result has been the prejudice of the private individual: the paramountcy of the public interest has been recognised and preserved. It may be that the existence of an inherent power in the Court of Scotland provides an ultimate safeguard of justice in that country which is denied to a litigant in England. If so, this House sitting as the final Court of Appeal from the Courts of Scotland will be jealous to preserve it. But in the present case the appeal fails and must be dismissed with costs.
The first question that the House must consider is whether the Central Land Board is a body which can claim the benefit of the Crown's right to certify that a document or class of document should not be produced because its production would adversely affect the public interest, or, to put it shortly, whether the Board is the Crown for this purpose. On this question I agree with my noble and learned friend on the Woolsack, and have nothing to add.
The next question is whether there is a rule of law by which the Scottish Courts are bound to give effect to the certificate of the Secretary of State, or whether these Courts have an inherent jurisdiction not to review the certificate but to override it. It is conceded that the Courts do not know the exigencies and conditions of the public service and cannot be in a position to say that the Minister, to whom the exigencies and conditions are known, was wrong in certifying that the public interest would be injured by the publication of documents called for by a party to a litigation. One of the considerations which may move a Minister to grant a certificate like the present is that publication would or might be injurious to that freedom and candour of communication in writing between the officers of a department, which are of great importance to public administration: and the responsible Minister or the head of the public department must be the judge whether the disclosure of documents would have an adverse effect by inducing among public servants a cautious timidity in expressing their views. The judgments of Lord President Dunedin, Lord M'Laren, Lord Kinnear and Lord Pearson in The Admiralty v. Aberdeen Steam Trawling and Fishing Co. are conclusive on this point, but these judgments do not deal explicitly with the question whether the Courts in Scotland have the power to override the ministerial certificate. If such a power does exist, it must be based on the ground that the fair administration of justice between subject and subject and between the subject and the Crown, is a public interest of a high order, and that its protection is the care of the Courts.
In the hundred years before the case of Duncanv. Cammell, Laird and Co. was decided, there can be no doubt that the Scottish Courts were satisfied that they possessed the inherent power I am now discussing. In the present case the Lord Ordinary and Lord Russell were of opinion that the Scottish Courts retain that power. Lord Carmont was, I think, disposed to agree with that opinion but he felt constrained to bow to the decision in Duncan v. Cammell, Laird and Co. Lord Sorn also held that the rule of law laid down in Duncan v. Cammell, Laird and Co. was binding on the Court of Session in any situation contemplated in the judgment of the Lord Chancellor in Duncan v. Cammell, Laird and Co., but not in other cases.
It was argued for the respondents that the case of Earl v. Vass decided in principle that the Courts in Scotland were bound to give effect to a ministerial certificate that production of a document would be contrary to the public interest. In that case the pursuer [Vass], who had been seeking employment under the Board of Customs, raised an action of damages against the Earl of Home on the ground that he had falsely and maliciously made insinuations to the Board against the pursuer's character and so caused the pursuer to lose the opportunity of employment under the Board. The Lord Ordinary granted diligence for the recovery of letters written by the defender to the Board and to the Treasury. The Inner House affirmed. In the House of Lords the Lord Chancellor, Lord Eldon, reversed the judgments. He did so after consulting the Lord Chief Justice, who stated that "he would not have permitted any such production as is here called for" for reasons of public interest. Lord Eldon heard no debate on the question which this House has now to decide and there was no appearance for the respondent. I can find in that case no authority for a general rule of law that the Scottish Courts have not the inherent power contended for. In Scotland the case has never been suffered to lay down any general rule. In Hendersonv. Robertson Vass was referred to but it was treated as a decision of narrow scope and Lord Eldon's opinion that the Crown cannot waive the right to withhold documents was rejected.
So, in Donald v. Hart, Lord Justice-Clerk Hope, disallowing a call for a Crown precognition in an action for wrongous imprisonment directed against the Procurator-fiscal because malice did not appear in the issue, was free to say:
"I am not prepared to say that there is no case in which the Court would not, when it was necessary for, the ends of justice, and when malice is averred as to the precognition, order production of a precognition."
From that time onwards for a hundred years there is a uniform tract of authority asserting the inherent power of the Court to disregard the Crown's objection to produce a document on grounds of public interest. It is necessary to refer to some only of the more important of these. In Halcrow v. Shearer the Court, consisting of Lord President Robertson, Lord Adam, Lord M'Laren and Lord Kinnear, granted diligence to recover a report on the character of a policeman made by the Procurator-fiscal to the Police Committee of the County Council although the Lord Advocate objected that its production would be prejudicial to the public service. It was ordered that the document should be transmitted to the Clerk of Court to lie in retentis and await the further order of the Court. This was done apparently in order to allow the Lord Advocate further time for consideration. The case, however, is not consistent with a rule of law that the Lord Advocate's objection, which had not been withdrawn, was conclusive. Arthur v. Lindsay was an action for defamation against a Procurator-fiscal in which the pursuer had relevantly averred that the defender had inserted in precognitions statements which had not been made by the pursuer and had shown the precognitions to persons who had no concern with the preparation or the trial of the case. The pursuer moved for diligence to recover the precognitions and the Lord Advocate objected on the ground that it would be prejudicial to the public service. The First Division refused the diligence. Lord President Robertson said:
"They" (the precognitions) "are even of a high materiality, and it may be that the want of them will be prejudicial or even fatal to the pursuer's claim. But it is undoubted that private rights must sometimes yield to the requirements of general public policy, and it seems to me that the essential confidentiality of communications passing between a Procurator-fiscal and the head of the Criminal Department in Scotland is a paramount consideration." The Lord President referred to an admission said to have been made by the Crown in Donald v. Hart that the general rule might yield to some great and overwhelming necessity but he found that the case did not fall within that description. Lord Adam and Lord M'Laren agreed with the Lord President, and Lord M'Laren added this:
"No doubt the Court has always maintained its power to make such an order in cases of emergency…but this is qualified by the fact that no authority has been found where the jurisdiction was in fact exercised, and it is most unlikely that, while the criminal administration remains as at present, the Court ever will exercise this supplemental power."
Lord Kinnear doubted whether the case was not one in which production of the precognition should have been ordered, but he was not prepared to override the Lord Advocate's objection. I think it is true that Lord President Robertson was disposed to hold that the recovery of a Crown precognition should never be ordered if it was opposed by the Lord Advocate, and it is also true that no case has been found where a Crown precognition was recovered when the Lord Advocate objected, but the Lord President did not deny the overriding power of the Court. In Sheridanv. Peel Lord President Dunedin, in granting an unopposed motion for diligence to produce, inter alia, a Crown precognition, said:
"It is quite clear that where documents sought to be recovered are in the custody of the Lord Advocate or of the Crown officials, the only proper course is to intimate to the Lord Advocate. He may then consent to produce the documents, or refuse to produce them on grounds of public interest. If he refuses to produce them, the Court can be asked to ordain him to do so. There are probably very few instances in which the Court would order the Lord Advocate to produce documents which he thought it inexpedient to produce, but the power to do so has always been recognised as inherent in the Court."
Lord M'Laren, Lord Kinnear and Lord Pearson concurred with the Lord President. In Dowgray v. Gilmour Lord President Dunedin referred to the steps which a party might have taken "for seeing if he could not make the Lord Advocate produce" a document in his possession, and he referred to his remarks in Sheridan v. Peel .
The next case is Admiralty v. Aberdeen Steam Trawling and Fishing Co. It arose out of a collision between a trawler and one of His Majesty's ships. The Admiralty objected to a motion for a diligence for the recovery of reports in its possession relating to the collision. The trawler owners argued that the Admiralty "could not plead that it would be contrary to the public interest to produce the documents called for." They did not argue that, if they were wrong on this point, the Admiralty's objection should nevertheless be overridden. The Court refused to order production, and the judgments of Lord President Dunedin and Lord Kinnear are important because they held that it is not for the Court to decide whether the production would be detrimental to the public interest and that that is a matter for the Board of Admiralty which alone had before it the necessary information. None of the learned Judges discussed the Court's inherent power to allow production in spite of the Lord Advocate's objection, but it cannot be inferred that they had changed the opinion they had all expressed so recently in Sheridanv. Peel . In Hendersonv. M'Gown the First Division, reversing Lord Hunter, refused the defenders' crave for diligence to recover income tax returns. This was an action of damages in which the pursuer averred that his partners had falsely accused him of fraudulently understating the profits of the business managed by him. The defenders pleaded veritas. Many authorities, including Earl v. Vass and Admiralty v. Aberdeen Steam Trawling and Fishing Co., were cited. The Court, before coming to a decision, consulted with the Judges of the Second Division. Lord President Strathclyde said:
"Undeniably, certain expressions to be found in some of the opinions in the case of Admiralty v. Aberdeen Steam Trawling and Fishing Co. lend countenance to the Solicitor-General's contention, but, although the learned Judges in that case did not find it necessary to reassert the inherent power of this Court to order the recovery of a document, I cannot think that they intended to alter the law as it had previously been laid down and was generally understood, or to part with an inherent right in this Court which each of those Judges had on prior occasions expressly recognised. The true meaning and effect of the decision was that, when the objection is stated by the government department, this Court will not consider whether the objection is well founded or not; this Court will not consider the merits of that question, but will grant or refuse the diligence at their discretion."
Having said that, he went on to consider whether the Court ought to exercise its inherent power in the case before it and decided that it should not. The same doctrine was reasserted by the Second Division in Caffrey v. Lord Inverclyde and by the First Division in Rogersv. Orr . It was, therefore, in 1939, a firmly established rule that in Scotland the Court has power to override the objection of a Minister or head of a government department that the production of a document would be contrary to public interest. The power has seldom been exercised and the Courts have emphatically said that it must be used with the greatest caution and only in very special circumstances. It was also a firmly established rule that the Court could not dispute the certificate and that the question whether production would be contrary to the public interest was for the Minister or the department concerned. The Courts have recognised that the refusal to exercise the jurisdiction to override the Crown's certificate may cause great injustice. It is, indeed, impossible to reconcile in all cases public interest and justice to individuals, yet the power is not a phantom power and in the last resort it is a real, though imperfect, safeguard of justice.
It was, however, contended by the Lord Advocate that Duncan v. Cammell, Laird and Co. has established that in England there is a rule of law by which the Courts are always bound to give effect to a valid certificate by the responsible Minister, or in some cases the head of a department, that production of a particular document either in itself or as forming an item of a class of documents would be contrary to the public interest, and that the same rule of law prevails in Scotland. He also contended that the judgment of Lord President Cooper in M'Kie v. Western Scottish Motor Traction Co. shows that after Duncan'scase the Scottish Courts were at least weakening in their assertion of their inherent power.
I will assume the Lord Advocate's contention, so far as the law of England is concerned, is well founded, but so far as the law of Scotland is concerned it cannot, in my opinion, be sustained. Duncan'scase was an appeal from the English Court of Appeal and in it no question of Scots law fell to be decided. It is not binding on the Scottish Courts nor, of course, on this House sitting as a Court of ultimate appeal in a Scottish case. What was said in Duncan's case about the law of Scotland was said obiter, and, though it is not binding on the House, must receive the most respectful consideration.
It appears from the speech of the Lord Chancellor that after the hearing the case of Earl v. Vass was brought to his notice. It was on that case and on Admiralty v. Aberdeen Steam Trawling and Fishing Co. that he formed the opinion that the Scots law was the same as that of England. The tract of authority which I have discussed was not brought to the notice of this House, and in particular the First Division judgment in Hendersonv. M'Gown, delivered after consultation of the learned Judges of the Second Division, and its explanation of the Aberdeen case were never mentioned. In these circumstances I feel compelled to say that the Scots law did not receive sufficient consideration and that the observations upon it are of no weight. I cannot agree with Lord Carmont that the law of Scotland is to be altered by a side wind and that we are to have our long-established rules of law overturned by dicta pronounced without adequate citation of Scottish authorities and without debate. I do not find in Lord Cooper's judgment in M'Kie any acceptance of Duncan's case as determinative of Scots law. His judgment leaves that case over for future consideration and he does not commit himself. The result seems to lead to the conclusion that there is a difference between the law of England and the law of Scotland on an important constitutional question. That is no new thing, for until 1947 it was the law of England that the Crown could not be required to give discovery of any documents in a suit against it—Thomas v. The Queen —and that was, in my opinion, never the rule in Scotland.
It now becomes necessary to consider whether the interlocutor appealed from should be reversed in whole or in part, and the diligence granted in whole or in part. The case is narrow, and I would not have been disposed to interfere if the Courts below had granted the diligence craved. But not one of the learned Judges was in favour of granting the diligence, on the footing that the inherent power of the Court was unaffected by Duncan's case, and I do not find that there are sufficient reasons for interfering.
I am for dismissing the appeal.
But the point about which I have felt real difficulty relates to the action which the Court ought to take in the present case. To deal with that question requires that something should be said about the nature of this power which is reserved to the Court to "overrule" a Crown objection. I do not understand that the existence of the power involves that in Scotland, any more than in England, it is open to the Court to dispute with the Minister whether his view that production would be contrary to the public interest is well founded, or to arrive at a view, contradictory of his, that production would not in fact be at all injurious to that interest. If weight is given to the argument that the Minister in forming his view may have before him a range of considerations that is not open to the Court and that he is not under any obligation to set out those considerations in public, I think that it must follow that the Minister's view must be accepted by the Court as incapable of being displaced by its own opinion. I understand the decision in Admiralty v. Aberdeen Steam Trawling and Fishing Co. as a decision precisely to that effect: and I do not think that there is anything in the later case of Hendersonv. M'Gown which conflicts with the earlier case as so understood.
The power reserved to the Court is therefore a power to order production even though the public interest is to some extent affected prejudicially. This amounts to a recognition that more than one aspect of the public interest may have to be surveyed in reviewing the question whether a document which would be available to a party in a civil suit between private parties is not to be available to the party engaged in a suit with the Crown. The interests of government, for which the Minister should speak with full authority, do not exhaust the public interest. Another aspect of that interest is seen in the need that impartial justice should be done in the Courts of law, not least between citizen and Crown, and that a litigant who has a case to maintain should not be deprived of the means of its proper presentation by anything less than a weighty public reason. It does not seem to me unreasonable to expect that the Court would be better qualified than the Minister to measure the importance of such principles in application to the particular case that is before it. The Scottish law appears to have reserved to the Courts the duty of making some assessment of the relative claims of these different aspects of the public interest, where production of a document is objected to by the Crown. If in the past the power to disregard the objection has hardly ever been exercised, that has been due, I think, to a very proper respect for the Crown's position and to a confidence that objections of this nature would not be advanced, or at any rate persisted in, unless the case was one in which production would involve material injury to the public welfare. But I should think it a very great pity indeed if a power of this kind, a valuable power, came to be regarded as a mere ghost of theory having no practical substance and the Courts abdicated by disuse in the twentieth century a right of control which their predecessors in earlier centuries have been insistent to assert.
In my opinion, the present case comes very near to inviting an exercise of the power. Most of the documents in question appear to be departmental minutes and they can hardly relate to anything else but questions as to the proper principles and methods to be followed in assessing development charges. Nothing of high politics, diplomatic relations or State secrets can be involved. If any of them are covered by the ordinary litigant's privilege of confidentiality or other ground, cadit quaestio. But the Minister's certificate says no more than that he has formed the view that on grounds of public interest the documents ought not to be produced "because they belong to a class which it is necessary for the proper functioning of the public service to withhold from production." I do not suggest that he was obliged to say more than or indeed as much as that. But the phrase "necessary for the proper functioning of the public service" is a familiar one and I have a misgiving that it may become all too familiar in the future, if the cases to which our attention is directed, Ellis v. Home Office, Smith v. Lord Advocate, Broome v. Broome, are symptomatic of the kind of situation which the formula is supposed to cover. I take it that it is lifted direct from the last paragraph of Viscount Simon's speech in the Duncan case (see p. 642): but if it is to become accepted doctrine that this very general phrase covers everything, however common place, that has passed between one civil servant and another behind the departmental screen on the special ground that the possibility of its disclosure in a legal action would impair the freedom and candour of official reports or minutes, I do not think that it will be a matter of surprise if some future Judge in Scotland finds himself obliged to disregard the Crown's objection and to hold that disclosure can do, much less injury to the interest of the public than non-production of a, particular document may do to that other public interest which is represented by the cause of justice. I am bound to say that I should myself have supposed Crown servants to be made of sterner stuff.
I do not urge that we should take such a course on this appeal. I do not think that it would be right to do so, having regard to the fact that none other of your Lordships favours it and that it did not commend itself to any of those Judges in the Scottish Courts who regarded themselves as being competent to exercise the Court's reserved power. Nor, I should add, do I feel any clear conviction that the production of the documents sought for is in any real sense essential to the appellants' case.
I agree that the appeal must be dismissed.
The remaining questions arising on this appeal are, then, whether there is an inherent power in the Court of Session to override an objection by the Secretary of State on behalf of the Board to produce documents under a diligence and, if so, whether this is a case for the exercise of such a power. A chain of authority extending from the beginning of the nineteenth century to the present day shows that the Court has consistently asserted an inherent power to compel production of a document against a Crown objection and it may be assumed that this claim has its origin from a much earlier date. What is said, however, is that these authorities run contrary to two decisions of this House, Earl v. Vass and Duncanv. Cammell, Laird and Co.
I turn first to Vass's case. Vass had been regimental paymaster in a regiment commanded by the Earl of Home and on leaving the regiment had been nominated by the Lords of the Treasury for employment with the Board of Customs. Vass alleged that by untrue and malicious statements made by Lord Home as to his character, in letters written to the Board, he was prevented from being employed as comptroller of customs at Grangemouth. He sued Lord Home for damages and took a diligence to recover the letters of Lord Home which were in the hands of the Board of Customs. The Lord Ordinary granted the diligence against the objection of the Board—Vass v. Board of Customs —and on a reclaiming petition the Court adhered by a majority of three to two. The minority took the view that compelling production of such letters would deprive the Board of, the power of procuring information and would be unjust to the opposite party as being only a partial production of evidence, it being admitted that the Board were not bound to disclose their deliberations and proceedings on the information obtained by them, so that it could not appear to what extent the information had operated. On appeal to this House by the Commissioners of Customs the case was decided ex parte, no case having been lodged on behalf of Vass and no appearance made for him. The House reversed the decision of the Court of Session. The judgment of the Lord Chancellor (Lord Eldon) appears to have proceeded on English practice and, to confirm or aid him in his opinion, he consulted the Lord Chief Justice (Abbott, C.J.).
I observe from a perusal of the case, preserved in the records of this House, that one of the contentions of the appellants ran as follows:—
"Were it even the principle of the law of Scotland which it is not that public officers were in ordinary case bound to make production of documents similar to those called for, the appellants would not be bound to make the disclosure because the documents came into their possession for safe custody as a public board, liable to all the regulations and entitled to all the privileges competent by the law of England to persons in their situation. By the Treaty of Union it is enacted—‘That the laws concerning regulation of trade, customs and excise to which Scotland is by virtue of this treaty to be liable be the same in Scotland, from and after the Union, as in England.’ In terms of this statutory provision, the Board of Customs was instituted and the whole of their proceedings are, regulated accordingly by the law of England. By that law an inquiry is never permitted from whom officers of the revenue have received information."
This argument involves a construction of the Treaty of Union which, in my opinion, is inadmissible. The only ratio I can extract from the judgment is contained in the passage that "it is against public policy that you should be compelled to produce instruments and papers which if persons are compelled to produce, it must shut out the possibility of the public receiving any information as to a person's fitness to be appointed to an office." This, in my opinion, limits the judgment very much to the species facti of that case. In the meantime I defer further comment on the case of Vass.
It is material to notice the place this decision took in the subsequent long series of authorities on this subject in the Scottish Courts. So far as I have observed, the first reference in this chapter of law to Vass's case is to be found in Hendersonv. Robertson . This was a case of an action of damages for a false accusation of perjury made to a Procurator-fiscal. The pursuer sought a diligence to recover the document of charge made by the defender which was in the hands of the Procurator-fiscal The motion was opposed by the defender and on intimation being made to the Crown agent objections to production were stated on behalf of the Crown. The Lord Advocate appeared before the Lord Ordinary in support of the Crown objections, but declined to state that any prejudice could arise to the public service from the disclosure, resting simply on the ground that he was not in any case compellable to disclose. In reporting the case to the Inner House the Lord Ordinary (Lord Rutherfurd) said:
"The case of Vass can hardly be considered as determining absolutely the right of the public prosecutor to disclose his informant or information," and later, referring to an argument for the defender, founded on Vass, that the Lord Advocate if not compellable was not entitled to produce, said:
"If the Lord Advocate, in his discretion, chooses to make the disclosure, he [the Lord Ordinary] cannot doubt the right of the pursuer to use the matter so disclosed."
The Lord Advocate did not appear in the Inner House in support of his objections and the report by the Lord Ordinary was considered on the argument for the defender. Lord Justice-Clerk Hope said:
"I lay entirely aside as inapplicable the case in reference to the Customs which was quoted to us."
Here, I have no doubt, he refers to the case of Vass He is also reported as saying:
"There are, no doubt, cases where it has been thought that informations should not be given up, on grounds of public policy—such as the information to the Customs, and similar cases; but whether even these would now be surrounded with the same degree of inviolability as they seem to have been, is questionable. These stand upon statutory authority."
The Judges all agreed that the document should be produced, the Lord Justice-Clerk saying:
"But I would think it very dangerous if the public prosecutor were not under the check of being liable to produce the information upon which he has acted."
The situation where the Lord Advocate took an objection in the public interest was, however, carefully reserved in the interlocutor of the Court, which ran: ldquo;…and in respect that the Lord Ordinary has reported that the Lord Advocate has not stated, and indeed declined to state, that any prejudice could arise to the public service from the disclosure of the said information, Find it unnecessary to give any opinion on the point whether any statement that such disclosure will prejudice the public service will be sufficient to protect the informant in the case of an ordinary crime, when such information is said to have been made maliciously, and without probable cause."
Vass'scase appears from the books to have been cited in Tierney v. Ballingall and Son and Brown's Trustees v. Inland Revenue, but, except in so far as it may have come to the notice of the Court through a citation of Henderson v. Robertson, Tierney and Brown's Trustees, it does not, so far as I have found, make its appearance again till we come to the case of Henderson v. M'Gown .Meanwhile, between 1853 and 1916 the Judges had affirmed on various occasions the inherent right of the Court to override an objection by the Lord Advocate on grounds of public interest to produce documents. Reference may be made in particular to three Inner House cases, Arthur v. Lindsay, Sheridan v. Peel, and Dowgray v. Gilmour . In these two last cases Lord President Dunedin expressed himself quite definitely in the sense stated.
I come to the case of Hendersonv. M'Gown .That case was concerned with documents in the possession of the Inland Revenue which the Inland Revenue objected to produce. Vass was cited in argument but no special reference is made to it in the opinions. The Judges of the First Division, after consulting with the Judges of the Second Division, expressed themselves without any dubiety in the clearest terms. Lord President Strathclyde said:
"I consider this Court has power, and will on occasion and at their discretion exercise that power, to order the production of any document, even although the public department concerned states the plea of public interest as an objection to the recovery."
And later he says:
"Now no distinction can, I think, be drawn in this matter between one government department and another. There is no room for such a distinction. There is no indication in any of the cases that the Court would draw any distinction between one department and another."
Lord Johnston, Lord Mackenzie and Lord Skerrington all took the same view. In the circumstances of the case, however, the Court were not prepared to exercise that power. In Caffrey v. Lord Inverclyde the Judges of the Second Division took a precisely similar view with reference to a police report of a traffic accident made by a police sergeant to his superiors. The existence of this inherent power was again affirmed in Rogersv. Orr by the Judges of the First Division under the presidency of my noble and learned friend Lord Normand. "An exceptional case might arise," he said, "in which the Court, in the exercise of its inherent power, would nevertheless allow the recovery of a document and override the Lord Advocate's objection."
When, then, it might have been thought that the law of Scotland was well settled in this matter, there came up for consideration in this House an appeal in the English case of Duncan v. Cammell, Laird and Co. I do not find it necessary to refer to the circumstances of that case. The case of Vass was resurrected, while the judgment of the House was under consideration, as a result of the researches of Lord Thankerton. That case was no doubt relevant to their Lordships' deliberations and to the review of the authorities made for the purposes of the decision by the Lord Chancellor (Viscount Simon). A few other Scottish authorities were referred to by Lord Simon but these did not bear on the reserved power so repeatedly asserted by the Scottish Courts and, so far as the report discloses, this matter does not seem to have come to the notice of this House. It may be that in any case it would have been considered irrelevant to a discussion of English law and practice. In the result I cannot regard the decision as binding on your Lordships' House in the present appeal.
I would remark, however, on one aspect of the decision in Duncanv. Cammell, Laird and Co. which is, I think, important. One of the material questions in the case, if not the material question, was, in the words of Lord Simon, whether, when the objection is taken in proper form, it should be treated by the Court as conclusive, or whether there are circumstances in which the Judge should himself look at the documents before ruling as to their production. So far as the Scottish Courts were concerned they had already answered the second branch of this question in the negative in Admiralty v. Aberdeen Steam Trawling and Fishing Co. and Henderson v. M'Gown and this was accepted as the law by pursuer's counsel in Rogersv. Orr . The attention of their Lordships was not directed to the case of Hendersonv. M'Gown and accordingly it was not present to their minds that the finality of the Crown's certificate did not in Scotland conclude the matter, if it was still subject to the inherent power of the Court to override it.
The case of Admiralty v. Aberdeen Steam Trawling and Fishing Co. was, however, before the House, and I should say a word about that case. It was referred to by Lord Simon as an illustration of the finality accorded by the Courts in Scotland to the view of a public department on the question of public interest. That was, it is true, the result in that particular case. There are, however, indications in the opinions of Lord Dunedin and Lord Kinnear that they had in mind at the same time the existence of an overriding power in the Court, although this would not be easy to detect without consideration of, or familiarity with, Scottish decisions. I refer to two passages in the opinions. Lord Dunedin said:
"It seems to me that if a public department comes forward and says that the production of a document is detrimental to the public service, it is a very strong step indeed for the Court to overrule that statement by the department"; and Lord Kinnear said:
"There are only two possible courses. We must either say that it is a good ground of objection, or we must overrule it altogether."
I have emphasised what I consider the important words in these passages. In my opinion, both these eminent Judges were referring to the inherent power claimed by the Court to override the objection of a government department. It would be surprising if it were not so, because both these Judges and the other two Judges who took part in the Aberdeen case were also the Judges who took part in the case of Sheridan v. Peel decided two years earlier.
To return finally to the case of Earl v.Vass, I can find nothing in the decision that compels the House to reject this power. Vass was a very special case. It was heard ex parte. No consideration was given to any specialties in Scottish law and practice. If there was a power inherent in the Court of Session, no decision of this House could take that away. It might decide that the power did not exist. But this was not considered and certainly not decided in Vass. On all counts Vass must, in my opinion, be regarded as a decision of very limited application. Looking to the continuous and consistent current of Scottish authority over a very long tract of time, I entertain no doubt that under the law of Scotland there is and always has been an inherent power in the Court of Session to override an objection on the ground of public interest to produce documents, rare though the occasion for its exercise may be. Reference was made to section 47 of the Crown Proceedings Act, 1947. But no suggestion was made that that statute affected any power inherent in the Court. The section, indeed, is entirely consistent with the existence of such a power.
There remains the question whether this is a case where the power should be exercised. It has been recognised that the power should be exercised only in exceptional cases. In Rogersv. Orr Lord Moncrieff pointed to one of the difficulties when he said:
"It is possible that a matter of private right might be of such magnitude, and might indeed be so related to public interest, as to make the problem a delicate one and difficult to solve."
Morris, L.J., in Ellis v. Home Office struck the same note when he said:
"When considering the public interest, and when considering what might be ‘injurious to the public interest,’ it seems to me that it is to be remembered that one feature and one facet of the public interest is that justice should always be done and should be seen to be done."
This does not seem to me to be a case in which private right is of such a magnitude as to outweigh public interest. The documents called for are documents passing within a public department or between the department and officers employed or instructed by it. They are thus within that class of documents which is generally recognised as entitled to protection on the ground of public interest. Nor do the documents seem to me to be essential to the appellants' case. There may, however, be documents to which these considerations do not apply, or documents which, considered individually, do not require to be kept secret, for the protection of the State, or in the interests of the proper functioning of criminal administration. There are cases where the Lord Advocate has not thought it necessary to advance public interest against the production of a written accusation of an ordinary crime alleged to be false and malicious and it is difficult to see what protection is required for a routine report forming part of the res gestœ; of a traffic accident lodged by a driver with his superiors. But everything must depend on the particular circumstances of the case. It is impossible to lay down broad and general rules. In this case the Lord Ordinary was not prepared to exercise his discretion to order recovery. I see no ground for interfering with the exercise of his discretion.
I would refuse the appeal.